Distances between buildings: compensation for damage without concrete proof


Emma Potter

The violation of distances between buildings represents a significant problem in Italian building and urban planning law. An exemplary case is represented by the ruling of the Court of Cassation n. 25935 of 2022, which addresses the issue of compensation protection for the neighbor damaged by an illegal construction.

What are the criteria for proving damage and on which parameters does the judge base the payment of compensation? How does this ruling affect the protection of neighboring landowners' rights?

What exactly does “damage in re ipsa” mean and how can the alleged injurer demonstrate his innocence?

Let's see together the details of this important ruling and its practical implications.

The ruling of the Court of Cassation n. 25935 of 2022

The ruling of the Court of Cassation n. 25935 of 2022 clarified various aspects related to compensation protection for violation of distances between buildings.

In particular, the case in question concerns the illegal construction of a building in Capri, which was carried out without the necessary authorizations. The owner of an apartment has built new structures, raising masonry perimeter walls across the entire width of her terrace and covering it with a sheet metal roof.

This construction covered the external perimeter side of the neighbor's apartment, with the canopy at a height almost corresponding to that of the lower side of the neighbor's window.

The neighbor, arguing that her right of view and the provisions of theart. 907 cc on the distances between buildings had been violated, he asked the judge to restore the original state of the places and to obtain compensation.

Article n° 907 cc
Distance of buildings from views

When the right to have direct views towards the neighboring property has been acquired, the owner of this property cannot build at a distance of less than three metres, measured in accordance with the art. 905.
If the direct view also forms an oblique view, the distance of three meters must also be observed from the sides of the window from which the oblique view is exercised.
If you want to lean the new construction against the wall where the said direct or oblique views are, it must stop at least three meters below their threshold.

In the previous levels of judgement, the owner of the illegal building had been convicted, but appealed to the Court of Cassation, complaining about the failure to establish proof of compensation for damages.

The Court of Cassation confirmed the decisions of the previous levels, stating that the violation of the rules on distances between buildings constitutes damage “in re ipsa“. In other words, the simple fact of having built in violation of the regulations automatically assumes the existence of damage to the neighbor, without the need for concrete proofby the injured party.

The Court underlined that the damage to the neighbor's property rights is implicit in the violation itself, unless the alleged injurer fails to provide convincing evidence to the contrary.

Jurisprudential precedent: sentence no. 21501 of 2018

Sentence no. 21501 of 2018 of the Court of Cassation represents a fundamental jurisprudential precedent regarding violation of distances between buildings. This ruling established that the neighboring owner can avail himself of two types of protection: specific protection and compensatory protection.

There specific protection allows the damaged owner to request the restoration of the state of the place prior to the violation, thus obliging the person responsible to demolish the illegal works and restore the situation to its original condition.

As for the compensation protection, the ruling clarified that the damage resulting from the violation of building distances must be considered “in re ipsa”. This means that the damage is presumed and does not require specific evidentiary activity on the part of the injured party. The Court has in fact stated that the effect of illegal construction is certain and indisputable, since it involves the imposition of an easement on the neighbor's land and a consequent limitation of the enjoyment of the property.

This limitation results in a temporary decrease in the value of the property, for which compensation must be awarded.

Sentence no. 21501 of 2018 therefore strengthened the protection of the rights of neighboring owners, making it easier to obtain compensation for damages suffered due to illegal constructions.

Liquidation of damages

The settlement of damages for violation of distances between buildings occurs on an equitable basis, as provided for by the art. 1226 cc

Article n° 1226 cc
Equitable assessment of damage

If the damage cannot be proven in its precise amount, it is liquidated by the judge with an equitable assessment.

The Court of Cassation specified that the parameter adopted for the liquidation is a percentage of the income value of the property, the usability of which has been temporarily reduced. In other words, the judge determines the amount of compensation by considering the temporary loss of value and usability of the property due to the illegal construction.